We don’t know whether the lawyers who worked in the PMO during the Duffy debacle – Nigel Wright and Benjamin Perrin – engaged in unlawful or unethical conduct. What we do know, though, is that two men with stellar public reputations, one (Perrin) described as a “hero” by Hillary Clinton (here) and the other (Wright) as a man “of good faith, of competence, with high ethical standards” by Jason Kenney (here), became embroiled in a public relations debacle – investigated by the RCMP, disavowed by the Prime Minister and publicly castigated for their potential involvement in the payment of $90,000 to Senator Duffy. How does that happen? How might an honourable and decent person, with good moral judgment in other aspects of his life, as well as legal knowledge and training, make a decision that is legally and morally suspect?

My last few days grading student examinations have given me some perspective on this question. The administrative law examination we assigned had three questions, two very typical of the sorts of questions that students might have expected to see given past exams and the problems we had done in class, and one that was structurally quite different. The nature of the administrative decision raised by the problem was unusual, and the context in which the decision was made even more so.

The answers to the unexpected question were, in a number cases, significantly – and strangely – wrong. The students made statements about the relationship between the legislative, executive and judicial branches that were fundamentally off-base and that I know, given their other answers and the many conversations I have had with them, they do not actually think are true. Yet somehow when answering the question these students lost access to the knowledge that they possess about the functioning of the legal system and the ability to apply administrative law concepts with which, as demonstrated by their other answers, they were relatively familiar.

Why? The problem for these students may have arisen from the cognitive weaknesses to which humans are susceptible. As human beings, we are simply unable to pay attention to or process everything that surrounds us, or all the information we receive. We use heuristics to make decisions, rather than identifying and rationally assessing all of the information available to us. And, when facing something unfamiliar, particularly in an area where we lack expertise, we can often miss the obvious.

Christopher Chabris and Daniel Simons famously documented this last point in their “invisible gorilla experiment”. In the experiment participants were shown a one-minute video of people wearing white and black shirts, passing basketballs. Participants were asked to count how many times the people wearing white passed the ball. About 30 seconds into the video, a woman wearing a gorilla suit walked in front of the players, beat her chest, and walked off – being on screen for about 9 second (you can see the video here). Despite this relatively dramatic incursion onto the screen, about 50% of the participants did not see the gorilla. They did not see the gorilla because of selective attention – the attention they paid to counting the passes prevented them from seeing anything else, even something strange and obvious. In a recent variation on this experiment, researchers inserted an image of a gorilla into a CT scan of a pair of lungs; 83% of radiologists viewing the scans did not see the gorilla (“Gorillas in the Lung”)

While the problem for my students may have arisen from any number of cognitive gaps, my guess is the main issue was one of selective attention. The unfamiliar context, and their attempt to decipher how administrative law applied to that context, led them to miss obvious aspects of what they were looking at. They were so focused on trying to figure out how what they saw could be fit into their administrative law framework, that they did not really see what they were looking at.

Why, though, did some students not suffer from this problem? Likely because their grasp of the administrative law concepts was sufficiently good to allow them to broaden the focus of their attention, and to be less disorientated by an unfamiliar fact situation. In later iterations of the invisible gorilla experiment, researchers observed that experienced basketball players were more likely to notice the gorilla, presumably because counting basketball passes required less attention for them than for someone without that experience.

And what about Wright and Perrin? As noted at the outset, neither the precise legal or moral quality of their actions, nor even their involvement (in the case of Perrin in particular), is clear. But assume for the moment that their conduct was unethical or unlawful. How could that happen? My guess is that the circumstances of the PMO would create a similar blindness to the actual quality and significance of the acts in which they were engaged. The focus on the political – on the effect for the Conservative Party and the PMO from Duffy’s profligate expenditures – made the legal and moral ramifications of their handling of the situation invisible. Wright and Perrin would want to solve the political problem, and so would not be able to see that the problem also had legal and ethical dimensions. It wasn’t what was salient, and they couldn’t see it.

Under this hypothesis, it would also be significant that neither Perrin nor Wright have spent a significant part of their careers in legal practice. Wright was a lawyer for seven years at Davies, Ward Phillips and Vineberg, but he spent many more years as a businessman, and left legal practice a long time ago (his career is discussed here). Even his role in the PMO was not a legal one. Perrin does not appear to have practiced law at all (his UBC bio is here). That lack of recent (or any) practice experience, or current expertise in legal decision-making, may have further obscured the legal salience of the issues with which they were dealing. Neither Wright nor Perrin would have routinized “thinking like a lawyer” in a way that helped them overcome the problem of selective attention. And, as a consequence, good men may have acted badly.

This column has been largely speculative. But to the extent it contains an element of truth, it suggests the significance for lawyers who wish to avoid ethical trouble of ensuring that they are in a position where the legal and ethical significance of situations will not be obscured. Modern law firm approaches to conflicts of interest – where the identification of such conflicts is systemized – is an example of how that can be done. But in other areas of ethical significance, it may be that lawyers face risks they do not even perceive.

Comments

This is a useful discussion, notably about the difficulty of applying ‘known’ concepts to distractingly unfamiliar circumstances. Daniel Kahneman’s book, Thinking, Fast and Slow, has a lot of examples of different kinds of mental practices that prevent proper observation or analysis.

I still await some explanation of what Nigel Wright, or the PMO generally, did in the Duffy case that was either unethical or illegal, before the lies started about what had been done. Why shouldn’t either the party or a generous partisan bail out someone who has got into a political mess that might be resolved by paying the money back? If Senator Duffy had got the money from his cousin, would anyone care? Why does it matter that it was Nigel Wright instead?

Alice, I am so glad you insert the word “Maybe” into your title. It is expected that students , during an intense period of writing exams, could suffer from the lack of sleep, cognitive overload and deficiency, anxiety & stress, a poor diet and lack of exercise. What, then, is so unusual about a physically, mentally and emotionally strapped student being unable to answer an unusual administrative law question on an exam? I have never been convinced (even as a teacher) that these “quicksand” style questions reveal anything useful about a person’s cognitive widthband, let alone allowing me to garner any useful information about the ethical and moral background of the individual.
The Gorilla examples might just be further confirmation that our retina is not such a good imaging device because the brain makes up and ignores stuff based on the data it gets from our eyes. It is a fact, there is a design flaw in the neural circuits that make up the human retina.
Unfortunately, the only common thread I can see between the PMO’s lawyers and a student writing an exam would be the “complex apparatus of deceit” if a student was caught cheating.
The biggest “no” for the theory of “gorialla blindness” is that Mr. Duffy’s lawyer was negotiating with Mr. Wright, via emails, the terms and/or conditions of Mr. Duffy’s co-operation in this deceit. #What!! The outcome, according to the news reports was that Mr. Wright agreed to: stop the audit (which didn’t happen) and reimburse the senator for all of his improperly claimed expenses (the $90,000 cheque). Why did he become entangled in Mr. Duffy’s web? Sometimes people don’t want to deal with the truth, they just want the problem to go away. This quote from Sir Walter Scott’s poem Marmion is apropos, “What a tangled web we weave when first we practice to deceive.”
It is always a pleasure to read your speculations and insights.

I am astonished at Mr. Gregory’s closing rhetorical question. I’m not a lawyer but the answer is obvious to me. Canada’s PM has the privilege of making many appointments, among them to the Senate. Let’s put aside any concerns regarding on whom he chooses to bestow these appointments. Once the appointments are made Senators are expected to conduct themselves independently, therefore they should have no relationship with the PM or the PMO that might suggest a dependency. Evidently, no one in the PMO, including Mr. Wright, understood this. I therefore have little sympathy for Mr. Wright.

The Gorilla Test is a popular piece of pop-psychology research that has been extrapolated way out of context, and I fear this article is yet another of the same.

Your students have two approaches available to them for passing the test. One of them is to thoroughly understand and be able to apply the course material, the other is to be able to thoroughly memorise the course material, and regurgitate the expected answer. In this context, it is illuminating that it’s the unusual question with respect to previous exams and questions, that causes the problem. You quite probably managed to flush out the students that were simply relying purely on good memories.

This is an educational issue that is fairly universal, it’s entirely possible in many subjects, even in those far more practical than law to get through on memorisation rather than understanding. None of this really has anything to do with ethics either, unless you are naive enough to believe that teaching somebody ethics will compel them to act ethically. The catholic church, amongst many similar organisations, has a 2000 year history of singularly failing in that effort.

John, a public servant is not allowed to accept any gratuitous payment of money, let alone $90,000. Indeed, public servants can get in trouble for taking a free lunch (suggesting again, none such phenomena exists…). For obvious reasons, it is illegal to give tens of thousands of dollars to public officials for any reason, regardless of whether there is any “quid pro quo” promised in return.

Further, there is no distinction between just giving someone a cheque for $90k and repaying a debt for $90k. Don’t believe me? Try telling your employer to just pay your credit card bill instead of giving you a paycheque, and then don’t declare that as “income” to CRA.

This sort of payment may not be immoral. Certainly, I would rather that Mr. Duffy’s expenses, assuming they were improper, be repaid by someone other than the taxpayers.

However, as this $90k payment is illegal, it is almost by definition unethical for a lawyer to facilitate it. A lawyer is ethically obliged to obey all laws, unless perhaps making a principled stand against an unjust law. Certainly, the law against making large gratuitous payments to public officials is not unjust.

119. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years who

(a) being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, directly or indirectly, corruptly accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by them in their official capacity, or

(b) directly or indirectly, corruptly gives or offers to a person mentioned in paragraph (a), or to anyone for the benefit of that person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by that person in their official capacity.

The key to the offence is that the payment has to be made in respect of anything done or omitted to be done in the official capacity of the office. I would think that the normal understanding of that provision would be ‘in return for something done officially’, i.e. in the exercise of the functions of the member of Parliament, e.g. a vote, an exercise of influence, a word in the right ear, etc.

However, read strictly, the filing of expense claims as a Senator or other public official is done in the person’s official capacity, and repaying money wrongly claimed as an expense would be ‘in respect of’ that act.

That said, the money must be given or accepted ‘corruptly’.

I could imagine someone in good faith (even checking the Code ahead of time) thinking ‘this is not a bribe; I am asking nothing in return for my gift; it is therefore not corrupt and thus not forbidden’. Given how partisan most of the Senators are, I doubt that gratitude for getting him out of a scrape (had it done so) would make much difference in his conduct in office or his desire to please the PM.

I guess we will see if charges are laid, and if so under what law, and in any event, how the charges are disposed of. Meanwhile I can’t get unduly worked up about the attempted repayment, especially compared to the very harmful and in my view unethical, though probably perfectly legal, things the PM and PMO have being doing since 2006.

How does a spider spin a web? Firstly, it makes a bridge line from one fixed object to the next and drops an anchor line, creating a closed Y configuration. The spokes are spun next and this is followed by the spiral from the centre outward. How did the “Duffy Web” get spun? I think the triangle at the top consisted of Senator Duffy, PMO-top aides and counsel, and the Senate Internal Economy Committee. The anchor (stem of the Y) is the RCMP investigation , in the public interest, of alleged Criminal Code violations. The spokes are extensive and allegedly involve conservative party fundraising officials, senators, potentially, the managing partner doing the audit, and a cache of emails, from Mr. Perrin and Mr. Wright, filed in court by the RCMP. The spiral starts with the audit at the centre, not the $90,000, and the alleged attempts, by the PMO, head of the Conservative party fundraising arm, managing partner of Deloitte and ? to “whitewash” Sen. Duffy’s disallowed housing expenses from the records. After studying this web, I can’t help but raise the question about the nature of the negotiations between the PMO and Mr. Duff/Mr. Duff’s lawyer with respect to Mr. Duff’s expense records and his “co-operation” with the audit. The legal definition of a conspiracy is: “An agreement between two or more persons to engage jointly in an unlawful or criminal act, or an act that is innocent in itself but becomes unlawful when done by the combination of actors.” For me, the exchange of any money, under these unusual circumstances, raises a concern about a possible conspiracy to cover-up an attempt to defraud the government of Canada and the taxpayers. In my non-legal opinion, the alleged corrupt acts, involving multiple players occurred long before any cheque was written (intent before content). Do I believe both parties, in giving and accepting money, were aware that this was not a customary standard practice ? Yes. Were they both aware that by taking this action they were allegedly in Breach of the Conflict of Interest of the Senator’s Code? Yes, because they both ought to have been aware. The Code states: Senators should not accept gifts except ” compensation authorized by law” (Exception: normal expression of courtesy or protocol involving customary standards of hospitality that normally accompany the Senator’s position). This was not an ordinary Web, it is a shockingly extraordinary one which has been spun.

David, love the questions. My final comment will be on the topic of a student, bad exam- answers, career, opportunity and consequences in an attempt to relate to the title of this interesting article.
1. A law student; who is facing expulsion if he/she does poorly on their law administration exam, approaches a senior T.A. (student worked closely with over the term; is also the right-hand assistant to the Professor) to go for a coffee. The discussion soon turns to the students situation and the infamous admin. exam. The student pulls a large envelope from his pocket (money he/she borrowed from a family member) and leaves it on the table as a “tip” and walks away. After careful consideration, the T.A. thinks the “tip” is unnecessary because it was a self-serve establishment and puts the “tip” in his/her pocket. The T.A. did not accept the money “corruptly” and there was no agreement that he would be marking the student’s exam anyway.
2. Sitting a few tables away was an off-duty “campus cowgirl” who witnessed the entire “coffee exchange” and took several photos on her iphone. Without leaving a tip or finishing her coffee, she went straight to the Dean’s Office to report the incident.
3. Following an extensive investigation; the student is expelled from law school, the T.A. lost his/her job ( after returning the entire “tip”to the student) and the Dean is left wondering why the student:

1. didn’t use the money to hire a good tutor to help prepare for the exam
2.didn’t admit that maybe law school was not the best career choice and take the necessary time and funds to look for other career opportunities.